FEDERAL COURT OF AUSTRALIA

SZAGC v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 311

IMMIGRATION – no error of law – no jurisdictional error

Migration Act 1958 (Cth) s 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 cited

Muin v Refugee Review Tribunal (2002) 190 ALR 601 referred to

Re Minister for Immigration and Multicultural Affairs and Another; Ex Parte Miah (2001) 206 CLR 57 referred to

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 cited

Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547 cited

SZAGC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1585 of 2003

HILL J

26 MARCH 2004

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The Applicant pay the Respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This appellant is a citizen of Bangladesh.  Shortly after her arrival in Australia she applied to the respondent Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”).  Her application was unsuccessful.  She then applied to the Refugee Review Tribunal for review of the decision.

2                     The Tribunal affirmed the decision of a delegate of the respondent not to grant to her a protection visa.  The appellant sought judicial review of the Tribunal’s decision from the Federal Magistrates Court.  Her application was heard by a Federal Magistrate on 3 October 2003 and dismissed with costs.  The appellant then appealed the decision of the Federal Magistrate to this Court.  She filed her notice of appeal on 21 October 2003.

3                     On 24 November 2003 orders were made by consent listing the appeal for hearing at 10.15 am on 5 February 2004. 

4                     When the appeal was called on for hearing at the appointed time the appellant appeared unrepresented but with the assistance of an interpreter arranged for her by the Court.  She indicated that she had lodged with the Court by post a written submission.  For whatever reason that submission had not found its way into the Court file.  She did not have another copy at home of that submission but indicated that a friend could assist her in preparing another one. However the appellant sought an adjournment of the appeal for a period of two weeks to enable a person, presently out of Sydney, to assist with preparing the submission.  Inferentially that person was a lawyer and only very recently had she asked that person to prepare a submission, notwithstanding that she had had notice of the hearing date since at least 24 November 2003. 

5                     After discussion with the parties, I ordered that the appellant file and serve written submissions, being a copy of the submissions said to have been forwarded to the Court by post together with any additional submission she may wish to make on or before 26 February 2004.  I ordered further that the respondent file and serve, if desired, further written submissions in answer to those of the appellant by 4 March 2004 and that the respondent file any further submissions in reply to the Minister’s submission a week later.

6                     It was agreed that there was no further need for a hearing.  The appellant said that she had personally said all that she could say on the matter to me and that all she needed to say was to be found in the written submissions filed. 

The Appellant’s Claim in the Tribunal

7                     It was the appellant’s case that she and her husband had joined the Freedom Party in Bangladesh.  Her husband became prominent with the central committee of that party and she had become well known within it.  After the 1996 elections won by the Awami League, the Freedom Party had been targeted.  The appellant and her husband believed their lives to be at risk and left Bangladesh in 1997 for Dubai where they stayed a year but ultimately returned in December 1998. Upon their return they realized their life was still at risk and accordingly they left Bangladesh for France, returned to Dubai and came to Australia in August 1998.  They returned to Dubai and subsequently Bangladesh in 1998 and went to India.  The last occasion on which they had returned to Bangladesh was in 2000.

8                     It was on this last occasion that the Applicant and her husband went to visit some political friends. Upon their return from their friend’s place, Awami League terrorists attacked their rickshaw. The Applicant’s husband was shot and he died on the spot. The murder was reported to the police and the case is still pending in the courts. The Applicant feared for her life and obtained a visa to travel to Australia, arriving on 19 October 2000. Before the Tribunal, the Applicant said that she would like to return to Bangladesh, but felt that she could not because persons involved with the Awami League would kill her, just as they had killed her husband.

Findings and reasons of the Tribunal

9                     Before the Tribunal, the Applicant admitted to travelling to Australia on a passport that was not her own, which was in the name of Anna Begum, who was a relation of a Bangladeshi Member of Parliament. However, the Applicant had previously maintained that the passport was her own, even when the Department put contrary evidence to her. As a result, the Tribunal found that this lack of frankness in respect of her identity adversely affected her credibility as a whole.  Furthermore, although the Tribunal accepted that the Applicant was Runa Momotaj (which she claimed ultimately before the delegate of the Minister), it noted that her evidence relating to her identity was vague and inconsistent. Accordingly, the Tribunal found that the Applicant was not a credible witness, and that instead, she had attempted to create a profile of a refugee for herself.

10                  The Tribunal was also unimpressed by the Applicant’s evidence in respect of her claims relating to membership of the Freedom Party. Her inability to explain the Party’s political philosophy or organisational structure, combined with inconsistencies between the evidence she gave to the Department and the evidence she gave in the Tribunal in respect of the formation of the party and the number of seats it won in 1996 led the Tribunal to conclude that her evidence concerning the Freedom party was unreliable. Ultimately, the Tribunal was not satisfied that the Applicant and her husband were involved with the Freedom party and that her husband was killed for his alleged association.

11                  Independent evidence, namely two US State Department reports and one Canadian Immigration and Refugee Board report, also supported this conclusion. The reports indicated that the party ceased to function as a political party after 1996 when the Awami League won government, which contradicted the Applicant’s claim that she and her husband were active members of the party in 2000. I note that although the evidence before me does not indicate one way or the other as to whether this information was put to the Applicant, in the event that the information was not put to the Applicant, a denial of procedural fairness in this respect was not in any case raised as a ground of review before the Federal Magistrate or before me.

12                  In the light of the Tribunal’s failure to be satisfied that the Applicant had a well-founded fear of persecution for a Convention reason, which largely resulted from its adverse finding with respect to her credibility, the Tribunal affirmed the decision of the delegate, who had previously decided not to grant the Applicant a protection visa.

The application for judicial review in the Federal Magistrate’s Court

13                  In his reasons for decision, Raphael FM noted that the Applicant sought judicial review upon the grounds that the Tribunal did not have regard to the evidence, ignored the merits of her claim and did not act in good faith. The Applicant did not particularise the errors that she said the Tribunal had made, and instead suggested that her case was similar to the circumstances considered in Abebe v Commonwealth of Australia (1999) 162 ALR 1, Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74 and Muin v Refugee Review Tribunal (2002) 190 ALR 601. In view of these grounds, Raphael FM said that “it should be clear from this recital of the history of these proceedings that what the applicant is seeking is a merits review” (at [12]). Accordingly, since there is no jurisdiction for a court, on judicial review, to deal with the merits of a case, the Federal Magistrate dismissed the application, there being no ground of review being made out.

Disposition of the matter

14                  It is not in dispute that s 474 of the Migration Act 1958 which purports to exclude the jurisdiction of the Court to review a privative clause decision will only so operate if the decision of the Tribunal is actually a decision made within jurisdiction. A decision founded on jurisdictional error is not a privative clause decision and is thus properly the subject of review by the Court: see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 500 (per Gaudron, McHugh, Gummow, Kirby & Hayne JJ).

15                  In the Applicant’s Notice of Appeal, she contended that the grounds for review in her case are very similar to that in Muin v Refugee Review Tribunal (2002) 190 ALR 601. Muin was a case where a denial of procedural fairness (in that the applicant’s attention had not been drawn to the fact that certain documents which he thought were before the Tribunal were not in fact before it) resulted in jurisdictional error. It is now settled that denial of procedural fairness does result in jurisdictional error: see Re Minister for Immigration and Multicultural Affairs and Another; Ex Parte Miah (2001) 206 CLR 57 at 87 (per Gaudron J); Refugee Tribunal; Ex Parte Aala (2000) 204 CLR 82 at 101. However in this case, there is no evidence that conclusively suggests that there has been any denial of procedural fairness, let alone one of a kind similar to that in Muin.

16                  In the Applicant’s written submission, she contended that the Tribunal committed a jurisdictional error through being biased or because it had acted in bad faith. This is a serious allegation, but there is no evidence that suggests that the Tribunal was either biased or that it acted in bad faith.

17                  The Applicant’s written submission also contends that the Tribunal took into account an irrelevant matter (although there are no particulars of this given), made wrong findings of fact, ignored relevant material, failed to consider her claim, and misunderstood her claim and the law. No particulars of these contentions are given, and on the evidence before me, the Tribunal’s reasons, on its face, do not indicate that the Tribunal made any of these errors.

18                  Ultimately, all that can be said is that the Applicant was unsuccessful before the Tribunal because of particular findings of fact and a finding that was adverse to her credibility which meant that the Tribunal could not be satisfied that the Applicant’s claims were true. Findings on questions of fact are matters for the Tribunal and a court on judicial review cannot interfere with them unless, perhaps there is unreasonableness: Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]. Furthermore, they cannot constitute jurisdictional error if the findings were open to the Tribunal, which in this case they were: Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547 at 558-559.

19                  Quite clearly, there is no jurisdictional error that is identifiable in the reasons for decision given by the Tribunal. Accordingly, there was no error of law made by Raphael FM when he dismissed the Applicant’s application for judicial review.

Conclusion

20                  In view of the foregoing reasons, I order that the Applicant’s appeal against the decision of Raphael FM be dismissed and that the Applicant pay the costs of the Respondent’s appeal.

Associate:

Dated:              26 March 2004